To go to war for an idea, if the war is aggressive, not defensive, is as
criminal as to for to war for territory or revenue; for it is as little
justifiable to force our ideas on other people, as to compel them to
submit to our will in any other respect. But there assuredly are cases in
which it is allowable to go to war, without having ourselves attacked, or
threatened with attack; and it is very important that nations should make
up their minds in time, as to what these cases are.” - - John Stuart Mill,
‘A few words on non-intervention (1859) in JS Mill, Essays on Politics and
Culture, New York, Garden City, 1963

“Politics is conceived as a process out of which a morality will emerge;
that is to say, it is conceived as leading towards a form of social
coexistence in which politics and morality along with it will alike be
superseded.” - - Gramsci, Antonio, Selections from cultural writings.
London (Lawrence & Wishart) 1985, 400

"If democracy is ever to be threatened, it will not be by revolutionary
groups burning government offices and occupying the broadcasting and
newspaper offices of the world. It will come from disenchantment, cynicism
and despair caused by the realisation that the New World Order means we
are all to be managed and not represented." - - Tony Benn, British Labour
Party Member of Parliament

“All animals are equal, but some animals are more equal.” - - George
Orwell, Animal Farm

The objective of this article is to analyse what the true connotation of
the word ‘illegal’ is under international law, through the harangue around
humanitarian interventions. Whether it strictly implies non-adherence to
the UN charter or is in reality an abstract idea in harmonious
co-existence with legality and morality- reducing it to a mere rhetoric,
making them overlapping fields and consequently non-existential, is what I
wish to probe into through this study. And if the latter holds true, then
what does the ‘static’ character of the Charter around the dynamics of
International law and customs entail? Who might be the authors of these
customary creations and why they are given the reins to control
international law are lofty issues which consequentially lead to
“international law appear[ing] to be in big trouble by becoming a
euphemism for “hegemonic contestation”- a technique of articulating
political claims in terms of legal rights and duties”.[1]

I contend that though law cannot and must not rest on emotional
sentiments, every attempt at preservation of legality has been clouded by
hegemonic influences, be it in the form of non-execution of judicial
decisions or the penalties imposed, or of simply turning one’s moral
illegality into another’s moral legality. The morality and legality
infused into International law today has become reduced to a set of moral
claims, as there cannot exist international law which can be defended by
moral arguments. They are both distinct and only one of them can exist on
the same plane.

The attempt to merge them is what is creating the obliteration of
illegality from International law, and consequently the law itself. In the
advent of morality, an action can at best be immoral, but never illegal.

The cause that I wish to espouse is of the need to maintain legality
distinct from the moralities as customs and practices that determine the
course of international law, completely annuls much possibility of an act
being tainted ‘illegitimate’, especially when committed by the ‘rogue
states’, when with time, most State practices become the rule rather than
the exception.[2]

In illustrating the predisposition, “when the States assembled in the
general Europe Congress are in agreement regarding certain measures, such
measures become obligatory for all the European States. Since such
congresses were dominated by the European powers, they had a pre-eminent
role in shaping the norms of international legality.”[3]Their overpowering
presence in the international realm, being the more powerful states is
explicable, but whether the creation of the UN charter was merely a pawn
in their hands or an absolute noble intention is till date, questionable.

The new notion of humanitarianism in the light of Humanitarian
interventions, which is a concept always looked at from both sides of the
fence as being illegal (though morally) or otherwise, but with no
substantive conclusion yet. Also, of the right to interfere, a term coined
by the philosopher Jean Francois Revel in 1979, known to be the
recognition of the right of one or many nations to violate the national
sovereignty of another state, when a mandate has been granted by a
supranational authority to its transition to the responsibility to
interfere as an obligation which calls to all nation-states to provide
assistance (at the request of the supranational authority?) to an amicable
idea of consensual involvement which could do justice to ‘humanitarianism’
in its true sense of the word and its realisation possibilities has also
been examined .[4]

But the predicament gets accentuated with the asymmetrical way in which
the principles of humanitarian intervention have been invoked. In most
cases, by not obliging to the treaty norms, under the pretext of an
emerging customary rule, at other times by using the UN Charter as the
medium in order to drift away from the existing norms and principles of
international law. How rational is the notion of retroactive mandate, or
the lack of it completely, to allow a blatant breach of sovereignty, in
the name of the moral imperative: “we should not let people die.”?[5]

The idea of interventionism, especially when unilateral, has been met with
a lot of reticence by legal scholars, owing to the impression of modern
day colonialism that it has produced[6]. The crucial issue of dissent is
“whether justification through international law can, and should be
replaced by the unilateral, world-ordering politics of a self-appointed
hegemon”.[7] While Chechen populations did not attract intervention, the
Kosovars did, and that definitely tilted the balance towards colonial
attitudes as opposed to moralistic tendencies. In the same vein, Uganda
and DRC were ignored, but Iraq and Kosovo were acted upon. Where does that
leave the principles of the so called international law? When action on
Kosovo was deemed illegitimate by many, owing to the lack of Security
Council authorization, the resolutions made in response to Iraqi action
were considered ambiguous and led to interpretation favourable to the
different countries.

Proper And Improper Laws

‘Positively’ Law?
“Society,” says Mr Austin, “formed by the intercourse of independent
political societies, is the province of international law, or the law
obtaining between nations.”[8] Austin describes the law of nations as a
“set of opinions and sentiments and not ‘law’ properly so called”.

“Closely analogous to human laws of this second class[9] are a set of
objects frequently but improperly termed laws, being rules set and
enforced by mere opinion, that is, by the opinions or sentiments held or
felt by an indeterminate body of men in regard to human conduct. The law
set by fashion; and the rules of this species constitute much of what is
usually termed International law.”[10]

This forces us to ask, how does illegality emanate from that which has no
legality?

As has been propounded by many Positivists, the distinction between law
and morality is one which needs to be reflected on in greater depth. “The
social reality that corresponds to the word ‘law’ is perceived to be
really and simply the command of a sovereign, a rule laid down by a Judge,
a prediction of the future incidence of state force, a pattern of official
behaviour, etc.”[11] Though this may be a rather loose definitional
fiat[12] of what law really is, international law does appear to fail to
meet the legality threshold. Whether international law is a product of
international incidents, judicial decisions, or varying points of view,
the lacunae in the system might well have, as Kelsen puts it, “this whole
system rest[ing] on an emotional preference for the ideal of sentiment
over justice.”[13]

In meeting with the ‘legal’ connotation, the International Court of
Justice, as the last bastion of impartiality, has delivered many a
poignant judgment in order to resolve the differences between States, but
in the background of its functioning, lay the hegemonic influences,
thereby ridding it of the independent character that could provide
International law the legitimacy that it desperately requires, to do
justice to the term ‘law’ in its truest sense.[14] “Judicial creation”
states a contemporary positivist Neil McCormick, “is ultimately rooted in
the social conventions (describable in ‘is’[15]-propositions) of the
institutions of which judges are [but] a part. Law, as something deserving
loyalty, must represent a human achievement; it cannot be a simple fiat of
power or a repetitive pattern discernible in the behaviour of state
officials.” [16]

Positivism today- is seen by many modern day positivists as a slow eroding
concept where law and morality are merging in a realist trend[17]. Various
critiques of positivism suggest that the term “positivist” has acquired a
negative connotation, used to condemn a formalistic doctrine according to
which law is always clear and however purport less, is to be rigorously
applied by officials and obeyed by subjects. This theory does not find its
embedment in positivism and is in any case false. Moreover, it has nothing
to do with legal positivism, and is expressly rejected by all leading
positivists. What I intend to establish through this paper is that even if
laws stem from a natural moral cause, a distinct morality is used to
manipulate and vitiate those very same laws in favour of one’s own
advantageous position going to show that laws and morals are indeed two
separate fields, where one is used to alter the other, only reiterating
their distinction.

A befitting domestic analogy would be a case scenario where a rape
victim’s father murders the rapist. Two recurring themes stem out of this
act- prohibition of the violation of another person’s decency (moral
theme), which leads to the concept of illegality of rape (legal theme). In
turn, to kill someone (illegality) who raped your daughter (moral defense)
effectively allows the rapist’s father to kill the man (illegality) who
killed his son (moral defense), thereby unnecessarily intermingling the
two spheres of relative morals and laws, causing people to take ‘law’ into
their hands. “When a potentially violent police action was required to
restore seriously violated human rights in one of the states that was a
component in the federated world government, the action taken would have
to be centrally authorized. It would be wrong for a powerful neighbour
state to take the (international) law into its own hands.”[18]

An illegal
act should remain thus, lest it procures an aura of ‘legality’ through
social acceptance (and incorporation into customary international law) and
moral rhetoric. The parallel that this has with the scenario of a
humanitarian intervention lies in the fact that third parties intervene in
the name of humanitarianism, though usurping their powers as ‘equal’
members of an international community comprising of sovereign states, in
reality only responsible for the string of crimes their intervention
brings. Who might intervene to prevent those crimes? The chain reaction
that this could trigger off would be of a fatalistic character for the
international community.[19]

“It is also related to the broad requirements of impartiality in the
exercise of justice that any humanitarian intervention purports to serve.
The more an intervention is removed from the partial interests of
particular states, especially powerful ones, the more likely it is to
approximate justice, and the more likely it is to be perceived as
legitimate by the parties in conflict and by the international
community.”[20]

Which is why the United Nations charter prescribes two circumstances when
force can be used- for self-defence and under an action under Chapter VII.
When courts respond to critical claims for moral change, as they have in
desegregation decisions, we occasionally hear the riposte: “You cannot
legislate morality”.[21] The worthy cause that is espoused arises only out
of the anarchy that moral substantiations, as in the aforementioned case
could attract.
The contested issues that arise with respect to International law are
regarding how seemingly unjust, harsh and severe principles like those
concerning an intervention into another’s territory can be invalidated- By
violating them in rebellion or otherwise, or through hegemonic choices
alone? When interventions are carried out by the hegemons themselves or
led by a powerful member[22]- are their options the representation of what
is ultimate and sacrosanct? Wouldn’t one person’s morality be another’s
immorality? What standards can succinctly declare which option should
prevail?

Law and morality appear distinctly different even today, as the
positivists maintain.[23] In order to legitimize an illegal action under
international law, morality is used as the one and only validation. If all
laws were inherently based on a moral ground, emanating from a basic
universal moral line of reasoning, the need to legitimize an action which
is otherwise illegal, but for a new moral perspective, would never arise
in the first place. The second point of contention is why in the light of
the various interventions on humanitarian ground, a positive reason[24] is
required today to substantiate the action. If indeterminacy has become the
default position[25], where does international law find conviction to
label an act illegal? As there exists no pertinent standard[26] against
which this comparison between legality and illegality can be made,
international law gets downgraded into an array of actions called law, in
the shadow of morality, just but an action as dictated and decided by the
great powers which ultimately get incorporated into customary
international law through state practice, thus making illegality illusory.
International law would rather be renamed international morality.

“A man
living in a state of nature may impose an imperative law: since the man is
in a state of nature, he cannot impose the law in the character of
sovereign. Consequently, an imperative law set by a sovereign is not a
positive law or a law strictly so called. But being imperative (and
therefore proceeding from a determinate source), it amounts to a law in
the proper signification of the term, although it is purely and simply
only a rule of positive morality.”[27]

The standards laid down by the United Nations Charter are skirted around
and manipulated, and in its living character is found the perfect
ambiguity, that is desirable of most powerful nations to meet their
personal ends[28], hence implying that there is no clarity of ‘role’ or
‘rule’ in International law. Whilst this is an excessively debated and
discussed proposition, the is given impetus through this paper is the
proposition that International law has indeed become a debacle in its
endeavour to conveniently merge law and morality, thereby excluding the
one potential technique that could maintain the concept of ‘illegality’ by
imposition of penalty through the imposition of sanctions. Why this has
criminalised only the smaller countries is of course yet another example
of hegemonic redefinition.

endnotes
[1] This is an established issue and there has been much debate and
literature about it. In this context, what I will attempt to focus on is –
in the light of hegemonic redefinition, whether there is a concept of
illegitimacy still prevalent? And if there is, does it entail any kind of
sanction?
Martii Koskenniemi, ‘International law and hegemony- a reconfiguration’,
Cambridge Review of International Affairs, Volume 17, No 2, July 2004, p
197
[2] At this juncture, I am aware and not disputing that States do act to
their advantage, and that it is clearly a question of cost-benefit ratio,
but in the bargain, what they are really doing, is obliterating the
proposition called international law.
[3] Kolb, Robert, Note on Humanitarian Intervention. Affaires courantes et
commentaries Current issues and comments, IRRC March 2003, Vol 85, N^ 849,
pp119-134, at p 122
[4] See Jean Francois Bayart and Romain Bertrand. What Colonial legacy are
we speaking of? http://www.diplomatie.gouv.fr/fr/IMG/pdf/0901_Bayard-Bertrand-AN.pdf;
See http://en.wikipedia.org/wiki/Humanitarian_intervention
[5] This idea is grounded in the Universal Declaration of Human Rights,
1948. For the defenders of humanitarian intervention, it is legitimate
only when motivated by a massive violation of human rights and when it is
put in motion by a supra national body, typically the United Nations
Security Council.
[6] The quintessential hegemonic thrust in the Security Council, by the
name “veto”.
[7] Habermas 2003, 706, as quoted in Supra note 1
[8]. Scott, James (Feb, 1905). Legal nature of international law, Columbia
Law Review, Vol 5, No. 2 pp 124-152
[9] The second category being- Positive laws: that is to say, laws which
are simply and strictly so called, and which form the appropriate matter
of general and particular jurisprudence.
[10] Austin, John (1965), The province of jurisprudence determined and the
uses of the study of jurisprudence at p 12
[11] The debate generated by the differences on the distinction between
law and morality as quoted by Fuller in his response to Hart. At p 631
[12] See Fuller, Lon (1958). “Positivism and Fidelity to Law: a Reply to
Professor Hart,” 71 Harvard Law Review 630.
[13] Ibid
[14] In Nicaragua v The United States, 1984 ICJ Reports 392, where it was
decided by the ICJ that the USA had violated international law by
supporting the Contra guerrillas in their war against the Nicaraguan
government and by mining Nicaragua’s harbors. The United States had signed
the treaty accepting the Court's decision as binding, but with the
exception that the court would not have the power to hear cases based on
multilateral treaty obligations unless it involved all parties to the
treaty or United States specially agrees to jurisdiction. While the US did
accepted the ICJ's compulsory jurisdiction in 1946, it withdrew its
acceptance following the Court's judgment in 1984 that called on it to
"cease and to refrain" from the unlawful use of force against Nicaragua,
and that the US was in "in breach of its obligation under customary
international law not to use force against another state" and ordered to
pay reparations, though it never did.
[15] Bentham’s distinction between expositorial jurisprudence (the
propounding of law as it is) and censorial jurisprudence (the calculation
of the moral worth, of the law as it ought to be)
[16] See his Legal Reasoning and Legal Theory (1978) cited in Positivism
Today edited by Stephen Guest.
[17] Realism, which focuses on “what happened” and “what can be made to
happen”, avoids posing strictly normative questions such as “what should
have happened” and “what should happen”. Thus it implies a merging of the
present tangle of law and ethics, dismissing international ‘law’ and calls
it an imperative to “prevent the system’s collapse into anarchy”. I am in
fact in agreement of their view of this situation that the international
law has descended to, but in doing so, I do not consider it incompatible
or unperceivable to save the drowning ship, but maintaining the positivist
theme of separating the two ideals.See Koskenniemi, Martin. The Place of
Law in Collective Security, Michigan Journal of International Law, Vol.
17: 455, Winter 1996 at p 465
[18] C.A.J. Coady, The Ethics of Armed Humanitarian Intervention,
Peaceworks, United States Institute of Peace, No. 45, at p 26
[19] See Cohn, Majorie (2002). NATO bombing of Kosovo: Humanitarian
intervention or crime against humanity? International Journal for the
Semiotics of Law 15, pp 79-106 at p 80
[20] Ibid
[21] Fletcher, George (1987). Law and Morality: A Kantian perspective,
Columbia Law Review, Vol. 87, No. 3., pp 533-558 at p. 534.
[22] Lawyers and supporters of the intervention principle have been trying
to find “plausible legal basis for this novel formation: collective
security or unilateral action in (collective) self-defence- or exces de
pouvoir?” See Koskenniemi, Martin. The Place of Law in Collective
Security, Michigan Journal of International Law, Vol. 17: 455, Winter 1996
at p 461.
This debate has been proven inconsequential given most operations (Desert
Storm and Turquoise) were either carried out by powerful members or led by
one.
[23] See Austin, John (1965), The province of jurisprudence determined and
the uses of the study of jurisprudence
[24] Ibid
[25] Dworkin, Ronald (1986). Indeterminacy and law, Harvard University
Press, Positivism Today, Edited by Stephen Guest, University College
London at p.1
[26] Ibid at 4
[27] Austin, John (1965), The province of jurisprudence determined and the
uses of the study of jurisprudence at p 139
[28]. See Byers, Michael, Agreeing to Disagree: Security Council
Resolution 1441 and Intentional Ambiguity’, Global Governance 10 (2004),
165-186